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Wilkie and the "War on the West":

Any backlash against the Supreme Court's Wilkie v. Robbins decision is likely to come from the West. Robbins' claims resonate in the West in a way it may be difficult for landowners in other parts of the country to appreciate. In many western states government ownership of land is the norm, and private property interests are inexorably intertwined with the interests and authorities of various federal agencies. Approximately one-half of the land west of the Mississippi is owned by the federal government, and in some states the proportion of federal ownership exceeds 80 percent. To complicate matters, in many areas federal ownership forms a patchwork across the landscape, intermingling with private and state land. For this reason, ranchers like Robbins cannot operate without coming into constant contact with federal officials. This de facto dependence on federal lands is difficult for non-westerners to appreciate, and makes western landowners in the West particularly vulnerable to the sort of bureaucratic malfeasance alleged in this case.

Western landowners are also more likely to view Uncle Sam as an undesirable neighbor (apart from any federal subsidies they may receive). In the private sphere, adjoining landowners often accept minor indignities and trespasses without conflict, much as passersby rarely come to blows after brushing by one another on a busy street. Private landowners have a strong incentive to get along with their neighbors, as the benefit when other landowners reciprocate. Relations with the federal government are not quite the same, however. If federal officials decide to adopt a "zero-tolerance" approach, they can make life very difficult for an individual landowner at little cost to themselves. Given the need for rights of way, easements, and access to federal lands, there is ample opportunity for bureaucratic mischief through arbitrary actions. If an agency cancels permits or takes other actions without sufficient justification, he may be able to win his rights back through an administrative appeal, but there is no real remedy against a campaign of harassment and intimidation of the sort Robbins alleged.

Perhaps unintentionally, one effect of the Wilkie opinion may be to increase tensions and hostility between private landowners and federal agencies in the West. Federal officials now know they have less to fear from litigious landowners and may feel emboldened to act more aggressively in pursuing federal interests. Private landowners may also learn that any time they fail to press any legal claim against the government, they are undermining their ability to obtain relief. As the majority notes:

It is one thing to be threatened with the loss of grazing rights, or to be prosecuted, or to have one's lodge broken into, but something else to be subjected to this in combination over a period of six years, by a series of public officials bent on making life difficult. Agency appeals, lawsuits, and criminal defense take money, and endless battling depletes the spirit along with the purse. The whole here is greater than the sum of its parts.
Yet relief is now only available for the individuals parts, rather than the whole.

Robbins waited to sue until it was clear he faced a "death by a thousand cuts," at which point he sought relief for the entire harassment campaign. With this avenue closed, the only option for Robbins and other landowners in his position is to litigate and appeal each and every federal action, no matter how piddling or small, that is potentially adverse to the landowner's interests. Indeed, the potential for administrative relief for some of the actions about which Robbins complained was one of bases for the majority's holding. Now that the Court has completely a landowner's ability to seek relief for a series of deliberate actions, there could be an escalation of legal conflict between landowners and government agencies, and it is hard to see how this would be in anyone's interest.

In his majority opinion, Justice Souter details all the instances in which Robbins could have filed administrative actions, appeals, or other claims, but failed to do so. I doubt Robbins, or similarly situated landowners, will be likely to exercise such forbearance in the future. They will lawyer up instead, lest they suffer Robbins' fate. Given the majority's professed concern that allowing Robbins' claim would unleash a waive of similar federal lawsuits, this is quite an ironic twist.

Peter Young:
Would this kind of conduct committed by state agencies give rise to a cause of action under 42 USC 1983? I would have thought so. Are there any reported cases somewhat on point?

If property rights are threatened by this sort of conduct by federal agencies--and I think they are--why cannot Congress act to fill the void and create a cause of action to redress such misconduct as a violation of constitutional rights? I guess it's difficult to get federal lawmakers to increase federal governmental exposure to damages suits?
6.27.2007 12:25pm
Justin (mail):
I obviously don't think this is dispositive, or even relevant to the pragmatic concerns, but there is some understanding concern given the following threesentences:

"Western landowners are also more likely to view Uncle Sam as an undesirable neighbor (apart from any federal subsidies they may receive)."

"Given the need for rights of way, easements, and access to federal lands, there is ample opportunity for bureaucratic mischief through arbitrary actions. If an agency cancels permits or takes other actions without sufficient justification, he may be able to win his rights back through an administrative appeal, but there is no real remedy against a campaign of harassment and intimidation of the sort Robbins alleged."

The obvious point is that western landowners can afford to be western landowners only by the good graces and subsidies of the federal government, who not only provide money for their actions, but also provides the type of access to their lands that would be difficult, at best, to obtain from private individuals without the aid of legal remedies or exceptions to property rights. The history of the settling of the west is interesting, but was at least partially motivated by the government's self-interest - the landowners' heirs and transferees now want the benefit of the bargain without the implied, but always up front, price. That will lead to some (not all) counterweight when dealing with the equities as a broad matter (on the facts, I think this was just a case of trying to extend Bivens by claiming, in essence, that there was something special about property rights - such an argument got crushed in Kelo, and any attempt to extend Bivens was not likely to do well in front of the current court).

Also, there's some irony about the idea that at least certain conservatives had in poo-pooing the "choice" of the residents of New Orleans to live in a flood area but being passionately concerned about the rights of western landowners, whose ability to exist in that area is likewise dependant on federal subsidy and aid (and yes, I know there are ways to distinguish the two situations, though I don't find the obvious ones convincing).

Note that while I don't like the decision in the context that it limits Bivens (whereas I completely agreed with the majority in Kelo), I don't think it was unexpected. Despite the "devil's advocate" of the post, I have some sympathy for western landowners, though by the fact of their wealth, I obviously have more sympathy for those whose financial situation puts them even MORE at the whim of larger public.
6.27.2007 12:32pm
Justin (mail):
Peter,

Your second question is the correct answer to your first.
6.27.2007 12:33pm
Jonathan H. Adler (mail) (www):
Mr. Young --

Justice Ginsburg discusses the experience with claims against state agencies under Section 1983 in her dissent. She writes "we have no reason to believe that state employees are any more or less respectful of Fifth Amendment rights than federal agents," and then notes that "there are no reported cases on charges of retaliation by state officials against the exercise of Takings Clause rights." According to Ginsburg, this suggests that allowing Robbins' claim would not lead to flood of litigation in federal court.

JHA
6.27.2007 12:40pm
Justin (mail):
errata - Peter's last question is an answer to his second to last. I failed to count his actual first question, which JHA answered.
6.27.2007 12:46pm
DeezRightWingNutz:

Approximately one-half of the land west of the Mississippi is owned by the federal government


Does this include Alaska? If so, do you know the percentage ownership for land in the lower 48 that lies west of the Mississippi?
6.27.2007 1:15pm
Kurt Paulsen (mail):
Does this include Alaska? If so, do you know the percentage ownership for land in the lower 48 that lies west of the Mississippi?


One can find the most recent (2003) data on Federal land ownership, by state, from the National Resources Inventory (from the Natural Resources Conservation Service, Dept. of Agriculture) at:

Land cover by state

For each state, one can find estimates of the amount of land considered "federal land" which does not include land under CRP (conservation reserve programs). Also note that not all "federal land" is managed by the BLM.
6.27.2007 1:38pm
ATRGeek:
Well, they might lawyer up and fight for a while, but eventually they will get sick of paying their lawyers because their lawyers will not be able to get them what they really want, which would be an end to the harassment. They will then simply make it a practice to give in to federal officers making similar demands and threatening retaliation because there will be no effective way to stop federal officers from doing that.

So maybe Congress will step in and provided a remedy. I wouldn't count on it, however.
6.27.2007 1:50pm
Don Miller (mail) (www):
Justin,

Your response is typical for someone from the East.

I will summarize your comments into, admittedly, the worst light possible:

Western landowners are all rich and should be grateful that the Federal Government allows them their lifestyle.

My response.

Idaho, for example, has 62% of its land locked up by the Federal Government. Idaho has more Federal land than the total land area of Alabama. My county is 65% Federal Land. We are expected to help provide law enforcement, fire and EMS services onto these Federal Lands. We get no tax revenue to help pay for these services. Access to more and more of this land is being denied to residents of this area.

Federal subsidies fall far short of the revenue that the State and County could generate is this was all private land.

It makes people in other regions of the country feel better about the world to know there are 'protected forests' here though.

Many people in the West feel like we got a raw deal on the whole land thing. How much land from the original 13 States did the Federal Government lock up and claim ownership when they were founded?

We can't rewrite history, but many people feel that the States should have been given title to all the public lands within their borders when the State was founded. If the Federal Government needed land, they could have bought it back from the State.

I know that this rant sounds off the wall and crazy. But people around here don't view the Feds as some benevolent force that is only here to help. It is a tortuous millstone hung around our neck that we deal with because we have no choice.

This decision showed little grasp of what it is like to deal with the petty little dictators and bullies that make up the workforces of some Federal agencies.

I agree with Jonathan, people around here will go to court over every petty little disagreement now. The risk of not doing so is too great.

Sidenote: dealing with family court is like this already
6.27.2007 2:41pm
J. F. Thomas (mail):
We can't rewrite history, but many people feel that the States should have been given title to all the public lands within their borders when the State was founded.

And the reason they should have done this is why? Quite your whining. No one would live in vast reaches of the west, except for the Indians, who would still be hunting bison, if it wasn't for the federal government. For the most part, the federal government stole or cheated the Indians out of land granted to them in Treaties (like almost the entire western half of the Dakotas) and gave it to settlers, the railroads or miners for next to nothing. Much of it was completely unsuitable for farming (it's not just the harshness of life in North Dakota that causes people to leave, farming there just isn't profitable). Logging in Montana just isn't worth it without government subsidies. Very few places in the west would have telephone, public water, sewers, paved roads, or electricity without federal dollars. Yet the federal government is a millstone around your neck.

The day that one state between Kansas and the Pacific Coast pays a dollar more in Federal Taxes than it receives in Federal subsidies is the day you can start complaining about how wicked the Feds are.

Give me a freaking break.
6.27.2007 3:55pm
EricRasmusen (mail) (www):
It's true that it's not worth the cost of suing for each $5000 instance of harassment. But could someone harassed by government officials sue for punitive damages, on the grounds of intentionality and repeated behavior? I should think a Western jury would be more than generous.
6.27.2007 4:02pm
K Parker (mail):

I know that this rant sounds off the wall and crazy.

Not to someone who also lives in the West. It sounds perfectly reasonable, and a very nice counter to the "state officials are self-serving, federal officials are noble servants of the country as a whole" schtick that we hear too often.
6.27.2007 4:39pm
Don Miller (mail) (www):
Except the lack of taxes argument, most of what I posted in the previous comment was the things I hear from my friends and neighbors.

I do personally believe that the Federal Government is a millstone around the neck of the whole country however. Most people just don't see it

Comment: Land should have been titled over to State Control when State was founded.
Response: And the reason they should have done this is why?

You asked so I will tell you the argument. How much land did the US Government hold title to in the original 13 States at the founding of the country? Having the US Government hold title and have a policy of not selling or granting the lands to anyone else produces an environment that limits growth and development opportunities. A few radicals try to push the claim that it is a 10th amendment violation for the US to have held title and control of the lands. Their reasoning is that the Constitution didn't grant the US Government Land Management authority therefore that authority belongs to the individual states. Good luck with that one. I don't believe the situation will ever change. I try to learn to live and work with the status quo. That doesn't mean I have to like it.

BTW, one of the 'radicals' that pushed for more State control of Federal Land, got elected to the US Congress from Idaho a few years ago and is now the Governor of the State. This is a pretty mainstream idea around here.

Now in regards to this comment

The day that one state between Kansas and the Pacific Coast pays a dollar more in Federal Taxes than it receives in Federal subsidies is the day you can start complaining about how wicked the Feds are.


How about two, Nevada and Colorado, that fit in your window. Now can I complain? I got my numbers from The Tax Foundation, btw. They are up to date as of 2006. You can look at them here

Funny thing about numbers, when I started counting, I found only 18 payer states in the whole country. Of those, I would claim five as western states (California, Oregon, Washington, Nevada and Texas). 18 States that are East of Kansas receive more federal dollars than they pay in taxes. Only 14 states west of Kansas, including Alaska and Hawaii, are receiving more federal dollars than they pay in taxes. I believe you would have to add Washington DC to the Eastern numbers just to be fair.

(sarcasm on)So since the East half of the country clearly receives it's share of Federal Dollars, do those of us in the West have your permission to complain about Federal intrusiveness? (sarcasm off)
6.27.2007 4:46pm
Angus:
The Tax Foundation numbers look totally untrustworthy, and I question their basic math skills. I looked up my own state of Texas and saw this for 2004, the most recent year they have listed (in millions $):
Fed Taxes Paid: $128,636
Fed Money R'cd: $141,858

Yet according to their summary, Texas paid more in taxes in 2004 than it received. Huh???
6.27.2007 5:32pm
bradley:
The basic difference between the original 13 states and the later states are that the original states were sovereign and voluntarily gave up part of that sovereignty to join the union. Land transferred from the state to the government would be in the form of a bargain or gift from the state.

With the exception of Texas, and possibly Hawaii, no other state has ever been sovereign. Hence any state owned land would have been a gift from the federal government at founding. Why should the federal government give land held in trust for the whole nation, to one individual state?
6.27.2007 5:50pm
J. F. Thomas (mail):
You asked so I will tell you the argument. How much land did the US Government hold title to in the original 13 States at the founding of the country?

Well of course the U.S. Government didn't hold title prior to the founding of the country, it didn't exist. There are significant Federal holdings in most of the original 13 colonies (and most of the new states carved out of them) however.

As for your Tax Foundation numbers, simply adding up the taxes paid and the Federal tax dollars spent hardly begins to cover the cost of federal programs in the Western States. For instance, think of the federal water programs in the west or the roads or infrastructure that is already built. The value of these improvements is not included in a simple taxes in, taxes out calculation. Las Vegas wouldn't even exist to generate all those tourism dollars without Hoover Dam supplying cheap electricity and water to the desert. And the cost to the government of discounted mineral, timber, and grazing leases just doesn't appear on the balance sheets yet is a net benefit to the people of the west.
6.27.2007 6:00pm
Don Miller (mail) (www):
You are correct, I did some checking and the Tax Foundation adjusts their number to reflect each states share of the federal deficit.

I went to several other sites and they all listed the same numbers though (See here for an example)

In fact I like the second chart better. As a region, the West pays more in Federal Taxes than it receives in expenditures. The only region that receives more in benefits than it pays in taxes is the South.
6.27.2007 6:32pm
David M. Nieporent (www):
With the exception of Texas, and possibly Hawaii, no other state has ever been sovereign.
Vermont says hello.
6.27.2007 6:40pm
Elliot123 (mail):
Justin: "The history of the settling of the west is interesting, but was at least partially motivated by the government's self-interest - the landowners' heirs and transferees now want the benefit of the bargain without the implied, but always up front, price."

It is indeed interesting. How about if we just auction off all that land? Then nobody gets anything for free, ranchers have to bargain with property owners for what they need, and the west can follow the obviously successful system used in the eastern states.
6.27.2007 7:01pm
J. F. Thomas (mail):
It is indeed interesting. How about if we just auction off all that land?

And of course they will have to pay the fair market price for all the roads, Dams (can you imagine how much just the Hoover Dam is worth) and other improvements the federal government has paid for over the last 150 years. Not to mention settle all the outstanding claims to the Indian tribes that have been cheated out of their lands.
6.27.2007 9:15pm
Elliot123 (mail):
And of course they will have to pay the fair market price for all the roads

No, just auction the land. In the eastern states the roads are not owned by private citizens. Neither are the TVA dams. Why insist they be owned by private citizens in the west? Indian reservations would not be auctioned, but could use the same system as in the eastern states.

If one did insist on auctioning off the roads, I would hope the eastern residents would have as much access to owning and operating roads in their own states as would the citizens of the west. Of course, the easterners would also have to pay fair market value for their roads.
6.27.2007 11:33pm
bradley:
Including (all of) California and Washington in the west is laughable. The west under discussion is east of the Rockies.

--

As for auctioning off the land I'd be all for that, assuming the action was run so as to generate the maximum revenue. Small plot sizes, no easements, no servitudes, no covenants. All rights including water, mineral and development to go with the land. And the auction should be done over a fairly long period of time so as to avoid flooding the market.
6.28.2007 1:55am
K Parker (mail):
Including (all of) California and Washington in the west is laughable.
Well, I live in Washington, but for some reason I'm not laughing. Maybe that's because, while our percentage of federal owner ship doesn't approach Nevada's, it's still much larger than anywhere in the east.
6.28.2007 2:16am
J. F. Thomas (mail):
How about if we just auction off all that land?

I mean really, who would want most of the land in the west? Even if it were all auctioned off, who would buy it and for what purpose?
6.28.2007 12:34pm
Elliot123 (mail):
J. F. Thomas,

When one considers the extensive leasing program for grazing rights that the federal government operates, I'd say the fact that people are paying to use the land indicates it has considerable economic value. There is huge variation in the federal holdings. Mineral rights? Recreation? Wind farms? Solar collectors? People are quite inventive.

And for those who mention the Indians being cheated in the West - what did the Dutch pay for Manhattan? The Cherokees moved to Oklahoma for the climate? Surely any settlement program aimed at the West should not ignore how those hearty folks who settled the Eastern states treated the native folks they encountered.
6.28.2007 4:39pm